Opinion
9089 Index 650808/17
04-25-2019
VERTICAL SYSTEMS ANALYSIS, INC., Plaintiff–Appellant, v. Peter J. BALZANO, Defendant–Respondent.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellant. Bashwiner & Deer, LLC, New York (Joseph A. Deer of counsel), for respondent.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellant.
Bashwiner & Deer, LLC, New York (Joseph A. Deer of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 5, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
The motion court correctly granted dismissal. Defendant established, as a matter of law, that he did not violate the parties' employment agreement including its nonsolicitation provision. Defendant, an elevator inspector, did not provide unique or extraordinary services or have access to any trade secrets or propriety information that would require the enforcement of a restrictive covenant ( Harris v. Patients Med., P.C. , 169 A.D.3d 433, 93 N.Y.S.3d 299 [1st Dept. 2019] ). In opposition, plaintiff failed to raise any issue of material fact. The evidence plaintiff presented to demonstrate defendant's alleged intention to violate the nonsolicitation clause was unauthenticated and unavailing. No damages as a result of defendant's actions were alleged. Plaintiff failed to demonstrate that the nonsolicitation clause was reasonable as a matter of law ( BDO Seidman v. Hirshberg , 93 N.Y.2d 382, 388–389, 690 N.Y.S.2d 854, 712 N.E.2d 1220 [1999] ).
With respect to the defamation claim, plaintiff failed to plead it with the required particularity ( CPLR 3016[a] ; Dillon v. City of New York , 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept. 1999] ). Specifically, the complaint fails to state whether the utterances were verbal or written, the specific time and location at which the utterances were made and, most critically, to identify a single person who allegedly heard the offending utterances. No damages were alleged.
We have considered the parties' remaining contentions and find them unavailing.